Citation Nr: 0528551
Decision Date: 10/25/05 Archive Date: 11/01/05
DOCKET NO. 03-07 778 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his caretaker
ATTORNEY FOR THE BOARD
Dennis F. Chiappetta
INTRODUCTION
The appellant is a veteran who served on active duty from
January 1954 to January 1957. This matter comes before the
Board of Veterans' Appeals (Board) on appeal from a December
2000 rating decision of the Department of Veterans Affairs
(VA) Regional Office (RO) in St. Petersburg, Florida, which
denied service connection for PTSD. In June 2005, the
veteran testified before the undersigned at a travel board
hearing held at the St. Petersburg RO.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
The veteran has a VA diagnosis of PTSD (February 1999 VA
examination), and has been treated for PTSD since 1996. He
reports two inservice stressor events: (1) witnessing the
drowning of fellow servicemen and recovery of bodies in an
accident during maneuvers at Camp Delmar, California; and (2)
being demoted after refusing a homosexual advance from his
sergeant. The reported inservice stressor events have not
been verified.
Initially, the Board notes that the reported incident
involving the veteran's rejection of a homosexual advance was
claimed to be a personal assault and information he provided
to date in this regard is not of the type that would allow
for verification by any military record. The stressful
incident involving the accidental drowning of fellow
servicemen, however, is precisely the type of incident that
can be verified by historical records.
The veteran contends that he has PTSD due to an inservice
incident involving the accidental sinking of an amphibious
vehicle during training maneuvers with the USMC at Camp
Delmar near Camp Pendleton. In March 1998, the veteran
indicated the accident took place during the filming of "To
Hell and Back." The Board takes judicial notice of the fact
that this movie was released in 1955. In his April 1998
statement, the veteran reported that the incident took place
in 1955, when he was assigned to the 1st Marine Division, 3rd
Amphibian Tractor (AMTRAC) Battalion, Able Company, at Camp
Delmar, in the town of Oceanside near San Clemente Valley,
California.
The veteran was assigned to the above A Company between April
1954 and December 1955, with military occupational
specialties of driver for much of this time period.
In a May 1998 statement, the veteran reported that the
incident occurred in the Spring of 1955 and that they left
San Clemente Beach moving to Camp Pendleton on board a
landing vehicle transport (LVT). He stated that an
amphibious tractor or AMTRACT flipped over in the high surf
and sank, taking down a Lieutenant Colonel or Major by the
name of Orum (or Orrum, or Orme) and six members of his crew.
One other deceased soldier was identified as PFC Coffin.
(Subsequent statements and a March 2003 report of contact
from the veteran identify the names of others from his unit
who died in the incident. These include C.W.H. from Texas,
J.C. from Michigan, Sgt. R., Sgt. B., and servicemen
identified as D. from Louisiana, S., H., and Z.)
In a January 2001 statement, a former marine who had served
with the veteran submitted a statement supporting the
veteran's account of a 1954 or 1955 incident involving a
AMTRACT sinking and drowning six marines, including a major.
Attempts have been made to obtain information that might
verify this incident. In April 2000, the director of the
Center for Unit Records Research (CURR) indicated that the
RO's request for information was forwarded to the USMC
Historical Center. In an April 2000 response from an
Archives Specialist at the USMC Historical Center, it was
noted that prior to 1965, Marine Corps units were not
required to submit command chronologies, and as a result,
they had nothing in their file for the requested battalion
(3d Amphibious Tractor Battalion) or time period (January
1954 to January 1957). In February 2004, the RO submitted
another request for information to the USMC Historical
Center. The RO requested records from the veteran's unit
relating to an accident in 1954 or 1955 and possibly
involving a Major "Ovum", a J.C., and a C.W.H. This
request was referred to the National Archives and Records
Administration. An April 2004 reply from the National
Archives indicated that they did not have daily logs of
activities of these units that could assist in documenting
the reported event. It was noted that a search of records of
higher level correspondence files found no reference to this
event or to those named casualties.
During his June 2005 hearing, the veteran reported additional
information regarding the incident involving the AMTRACT
sinking. He testified that it was his belief that the
incident occurred in the fall of 1955.
The Board finds that attempts to verify the veteran's
reported stressor have been incomplete, and at times
inaccurate. Further attempts should be made to verify the
reported incident specifically employing the names of
servicemen the veteran reported as having died in the
incident. Specifically noted in this regard is an officer by
the name of Orum (Orrum or Orme), who was improperly
identified in the February 2004 RO records request as
"Ovum". Also, the request only listed a few of the names
provided by the veteran, so any new search should be expanded
to include the additional names.
Accordingly, this matter is remanded for the following:
1. The RO should make an attempt to
verify the veteran's claimed stressor
event involving the accidental drowning
of servicemen when an amphibious vehicle
sank during maneuvers while the veteran
was stationed at Camp Delmar, California
with the 1st Marine Division, 3rd
Amphibian Tractor Battalion, Company A,
which reportedly occurred some time in
1955. The request for records verifying
this incident should be sent to both the
Commandant of the Marine Corps,
(Headquarters United States Marine Corps,
MMSB10, 2008 Elliot Road, Suite 201,
Quantico, VA 22134-5030), and the Marine
Corps Historical Center, (Building 58,
Washington Navy Yard, Washington, D.C.
20375-9580). The names of those
reportedly killed in the incident should
also be searched. These include an
officer by the name of Orum (Orrum or
Orme), and servicemen identified as J.C.
of Michigan, C.W.H. of Texas, Sgt. R.,
Sgt. B., D. from Louisiana, S., H., Z.,
and C. See March 2003 document from
representative and veteran's statements
for full names.
If the retrieval specialist at either
location is unable to provide such
information, he or she should be asked to
identify the agency or department that
may provide such information and the RO
should conduct follow-up inquiries
accordingly. The Commandant of the
Marine Corps and The Marine Corps
Historical Center should both be
requested to certify the veteran's
traumatic experience reported above.
2. If, and only if, an inservice
stressor event is verified, then the
veteran should then be scheduled for a VA
psychiatric examination to determine
whether it is as likely as not that he
has PTSD (under DSM-IV criteria) related
to the verified event(s) in service. The
claims folder must be reviewed by the
examiner. The examiner should provide a
complete rationale for any opinion given
and should reconcile the opinion with the
other medical evidence of record.
3. After completion of the above and any
additional development deemed necessary,
the RO should review this matter. The RO
must consider all applicable laws and
regulations. If the benefit sought
remains denied, the veteran and his
representative should be furnished an
appropriate supplemental statement of the
case and afforded the opportunity to
respond. Thereafter, the case should be
returned to the Board for appellate
review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).